1. This appeal is by the defendant and it raises a point under Section 26G, Ben. Ten. Act. The defendant and his cosharer executed a mortgage by conditional sale in favour of the plaintiffs and put them into possession on 4th April 1923. The appellant took a sub-tenancy under the plaintiffs on 26th April 1926, on an annual rent of Rs. 117. The present suit is to recover rent for the years 1343 to 1346. The appellant's contention is that the plaintiffs cannot recover rent for the years 1345 and 1346 as their interest terminated at the end of 1344 under the provisions of Section 26G. The learned Munsif gave effect to this contention but his decision was overruled by the learned Subordinate Judge in the lower appellate Court. There was a dispute whether the interest of the mortgagors was that of occupancy raiyats or raiyats holding at fixed rates. The learned Subordinate Judge held that the appellant was estopped from pleading that it is the former in view of the fact that it is mentioned as mokurari in the mortgage deed. This is not a sufficient ground for estoppel. It must further be proved that the respondents were misled and that apart from this deception they would not have advanced the money. Mr. Das drew my attention to the fact that such a case was raised in ground No. 3 in the grounds of appeal in the lower appellate Court. This is perfectly true; but there is no evidence upon which such a plea can be supported. Neither was there a case for taking further evidence under the provisions of Order 41, Rule 27, Civil P.C. As there are no materials on the record on which a plea of estoppel could be supported it must be overruled. Turning to the merits of the question I find that the learned Munsif did not discuss it. This certainly looks as though the plaintiffs did not press it in his Court. The learned Subordinate Judge merely asserts that the land is mokarari; but as he was of opinion that the appellant was prohibited from raising the point he gives no reason for this assertion and does not discuss the evidence.
2. I am not however, prepared to remand the appeal merely for a rehearing on this point. The finally pub lished record of rights supports the appellant. The plaintiffs made no attempt to show aliunde that the holding is mokarari. They relied solely on the admission made by the mortgagors in the mortgage deed land in another document. It' is a matter of common experience that statements of this kind are frequently made collusively in documents under the idea that they create evidence against the landlord. In the absence of papers from the landlord's office it would be unreasonable to hold that the presumption has been rebutted. I, therefore, find that the interest of the mortgagors is that of occupancy raiyats. The mortgage bond comes within the terms of Section 26G (1a). It was entered into before the Bengal Tenancy (Amendment) Act of 1928 commenced and was subsisting on and after 1st August 1937. It must therefore be deemed to have taken effect as a complete usufructuary mortgage for 15 years, and under Sub-section (5) it should be deemed to have been extinguished at the end of 1344 when the mortgagors became entitled to recover possession. Mr. Das contended that that section does not apply for two reasons: (1) that the decision of a Division Bench of this Court in Sahauaddin v. Altafuddin : AIR1943Cal590 , is to this effect. (2) That as these provisions are quite inconsistent with those of Sub-section 8(b) it must be held that they have no effect. On the first point I need only say that the decision is against the respondents. The learned Judges were of opinion that the benefits of Section 26G are available to mortgagors in the position of the appellant but that they are not entitled to recover possession by a mere application under Sub-section (5). The decision by the same Bench in Manomohan Das v. Parswanath Das : AIR1943Cal588 which was heard a few days earlier, is to the same effect. The second argument based on an alleged repugnancy is raised as follows: Under Sub-section (1a) the mortgage was extinguished at the end of the year 1344. Under Sub-section 8(b) the mortgagee may institute a suit for a declaration that the original principal with interest has not been extinguished by the profits arising from the land during the period. These provisions are mutually exclusive and the former must be ignored.
3. It would be difficult to find any principle of interpretation under which this part of the section can be ignored altogether. The first question for consideration is whether a repugnancy can be avoided. In my judgment it can on account of the use of the words 'deemed to have been extinguished.' The extinction is a pure legal fiction in defiance of the actual agreement between the parties. Under Sub-section 8(b) the mortgagee is given an opportunity to show that in fact it has not been so extinguished. This of course would be an impossible task in the absence of some criterion either in the mortgage bond or in the Act itself. Under Sub-section (9) it if provided that in making this calculations the mortgagee should be allowed simple interest at 8 per cent. I am therefore of opinion that both parts of the section may be given effect to without a repugnancy. This construction, however, will not afford the plaintiffs any relief in the present suit. In the first place Sub-section (8) only applies to mortgages subsisting on the date of the commencement of the Bengal Tenancy (Amendment) Act of 1940. The present mortgage was extinguished in the year 1938. Then in the second place the mortgage will be extinguished unless the mortgagee takes action under the Sub-section. He cannot get any relief by merely going to sleep. If the benefits of the Sub-section had been available to the plaintiffs they should have instituted the suit referred to therein as soon as the written statement was filed. No doubt that suit could have been tried jointly with the present rent suit; but at any rate until the plaintiffs obtained a declaration in a properly framed suit, they would have no foundation on which to build their objection to the appellant's claim. 11 remains to refer to one other matter mentioned by the learned Subordinate Judge. He held that it was not open to the appellant to raise this defence in a rent suit. It was contended by Mr. Das that this view is correct It is not very clear from the judgment on what grounds the learned Subordinate Judge took this view. He does not appear to have relied upon an estoppel. Though the appellant would be estopped from denying that the plaintiffs had any title when the lease was granted he is entitled to show that their title has subsequently terminated. It appears, however, that the learned Sub-ordinate Judge thought that the question could not be determined in the absence of the appellant's co-mortgagor. It is perfectly true that he could not be made a party to the present suit and that he will not be bound by the decree. He will certainly be at liberty, if he likes to say that the mortgage has not been extinguished and to allow the plaintiffs to remain in joint possession with the appellant. But that is no reason why the appellant should be prohibited from resisting a claim for rent by showing that the relationship of landlord and tenant no longer exists. Mr. Das suggested an analogy with the case of disputes about the rate of rent and similar matters. It is perfectly true that one tenant cannot raise a dispute about matters pertaining to his tenancy in the absence of his co-tenants. But there is no analogy between disputes between a landlord and a tenant and disputes between a mortgagor and a mortgagee. I am therefore of opinion that the learned Subordinate Judge was not right when he held that it was not open to the appellant to raise this defence. The decree will accordingly be modified. The plaintiffs' claim for rent for the years 1345-1346 is dismissed. The plaintiffs will get half their costs in the first Court and in the lower appellate Court. They will, however, pay the appellant's costs in this Court. The Rule is entirely misconceived and is discharged. Leave to appeal under Clause 15, Letters Patent, is granted.